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Towleroad has a good piece today examining the compromise defense reauthorization bill that has come out of the House and Senate from an LGBT perspective. The good news is what’s not in the bill: Rep. Vicky Hartzler and Rep. Todd Akin’s amendments that would have reaffirmed DOMA and rolled back a Pentagon decision in September saying military chaplains and facilities could be used for gay weddings did not make it into the final version.

The bad news is what’s also not in the bill: a repeal of Article 125, the section of the Uniform Code of Military Justice banning sodomy. Legal scholars and the Comprehensive Review Working Group that oversaw the repeal of DADT have recommended that the outdated provision be scrapped. For now, although gay men and women can serve in the military, their intimate personal conduct is still illegal under the policy.

Here is the statement of Aubrey Sarvis, Executive Director of the Servicemembers Legal Defense Network, on the bill:

We congratulate the House and Senate conference committee for having struck the correct balance on the chaplains provisions. Clearly, there was no place for the restrictive Akin language as the Defense Department continues to move forward on effective implementation of open service in our military. This report demonstrates that a majority in Congress remains committed to, and in lock step with the Pentagon, in ensuring that we stay on the repeal course adopted by the last Congress and signed off on by the Secretary of Defense and the Chairman of the Joint Chiefs. There was no back tracking in the conference report on this front.

Additionally, our initial reading of the committee’s decision to update the provisions for rape and sexual assault in Article 120 of the Uniform Code of Military Justice is also positive.

However, we are very disappointed that the conferees voted to keep the sodomy provisions in Article 125. Dropping Article 125 has been recommended for more than a decade by SLDN and several groups, including the Cox Commission that includes distinguished legal scholars from the military and academia, as well as the Comprehensive Review Working Group (CRWG). The Senate was right to take this action, and it is unfortunate that their attempt to end Article 125 did not prevail. SLDN will continue to work with the Senate, House, and Department of Defense to bring about this needed change.

It basically applies Lawrence v Texas to the military as long as the actions are consensual and don't violate other military policies. They can still get people for fraternization and such. Art. 125 can still be tacked on to charged of sexual assault or rape. But not for just have sex with a civilian or even with someone in the military if the relationship is otherwise legal (i.e. not between officers and enlisted or between subordinates)

3. johnfromco | December 13, 2011 at 11:39 am

Do they really intend to dishonorably discharge every straight male military member who has received oral sex? It is amazing to me how some people can't even do the wrong thing right. It's equally amazing how few members of congress have a backbone (not that repealing a likely-unenforceable law should require backbone).

But I guess it wasn't until 2001 for Alabama to repeal their ban against interracial marriage (they still haven't overturned their school segregation laws, although some tried in a failed constitutional amendment election in 2004 – that's right, the majority of the state's voters actually voted for school segregation). Clearly some racist bigots, like anti-gay bigots, want to live in the past. I suspect that this anti-gay bigotry will be just as shameful as Alabama's constitution enshrining school segregation.

4. Lymis | December 13, 2011 at 11:54 am

Technically, the UCMJ just forbids "unnatural" sexual conduct with a person or an animal. It has always simply been taken for granted that all homosexual sexual acts were unnatural – but it doesn't specifically say so.
While it would be best and cleanest to repeal even that language, a very solid case can be made that it's not necessary to do so to change the understanding that gay sex isn't unnatural, which is, defacto, what they've done with oral sex in practice already.

Nor does the fact that sodomy is against the UCMJ make any particular punishment mandatory. So again, in practice, even without the UCMJ rewrite, it can become a violation without a punishment, and then be relegated to an add-on charge for cases of rape and assault, or conduct unbecoming (for example, posting explicit pictures on facebook) but ignored completely in cases where it is consensual, again, like oral sex is currently in practice.

5. johnfromco | December 13, 2011 at 12:05 pm

It does define oral sex as unnatural carnal copulation: "It is unnatural carnal copulation for a person to take into that person’s mouth or anus the sexual organ of another person or of an animal; or to place that person’s sexual organ in the mouth or anus of another person or of an animal; or to have carnal copulation in any opening of the body, except the sexual parts, with another person; or to have carnal copulation with an animal."

6. Chris Hogan | December 13, 2011 at 12:07 pm

Chock it up to the absolute joke of the fluke 2010 Tea Party election. Can you believe this? How embarrassing for America. The rest of the civilized world gets to chuckle to themselves about how we are arguing in congress about whether people should be allowed to get a blowjob in the privacy of their own homes. I am glad that the other ridiculous provisions were shot down, but I am pissed that apparently that man from the Family Research Council who was ridiculed a couple of days ago in the White House Press Room for his references to bestiality has gotten the last laugh. Shameful.

7. Reformed | December 13, 2011 at 2:58 pm

Although gay men and women can serve in the military, their intimate personal conduct is still illegal under the policy. Can anyone else see the problem with this . . .

Please fall out of line with those who think they know what the intimate personal conduct of gay men and women is. Thank you very very much.

8. Chris in Lathrop | December 13, 2011 at 3:06 pm

"The only unnatural sex act is that which you cannot perform." ~Alfred C. Kinsey

Too bad the UCMJ is stuck in the Victorian era, along with way too many conservative politicians.

9. Leo | December 13, 2011 at 3:24 pm

or to have carnal copulation in any opening of the body, except the sexual parts, with another person